2d Cir. Finds that Rule 50 Motion not Waived When Court Indicates that Such a Motion at the Close of the Evidence is Unecessary
Per Brady v. Wal-Mart Stores, Inc., --- F.3d ----, 2008 WL 2597936 (2d Cir. July 02, 2008):
A prerequisite for a motion for judgment as a matter of law post-verdict is that the movant had also moved for judgment as a matter of law “at the close of all of the evidence.” Fed.R.Civ.P. 50(a), (b) (1995). Appellee asserts that Appellants failed to meet this requirement because, although they moved for judgment as a matter of law at the close of Appellee's case, they did not so move at the close of all the evidence. On the final day of testimony, immediately before the first witness was called, however, Appellants' counsel renewed his Rule 50 motion, saying, “I assume you don't need me to raise [it] in any kind of detail.” The court replied, “No. Your 50(a) motion is denied without prejudice to renewing it, if appropriate, after the verdict.” (emphasis added).
We have held that where the trial judge has indicated that renewing a previously made motion for judgment as a matter of law at the close of all the evidence was not necessary, and where the opposing party could not reasonably have thought that the motion was dropped, then judgment as a matter of law may be sought post-verdict. See Am. Protein Corp. v. AB Volvo, 844 F.2d 56, 61-62 (2d Cir.1988); Best Brands Beverage, Inc. v. Falstaff Brewing Corp., 842 F.2d 578, 587 n. 3 (2d Cir.1987). Both were clearly so here; accordingly, Appellants' Rule 50(b) motion was not barred.